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Published 24 March 2014
The Supreme Court has handed down its long awaited judgment in the conjoined appeals of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another and P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council. In doing so it has clarified the test for identifying a deprivation of liberty where the living arrangements and care of a person who lacks capacity are concerned.
In the lead judgment, Lady Hale has identified the key features of deprivation of liberty as being whether the person is under continuous supervision and control and is not free to leave.
Significantly, the person's compliance with (or lack of objection to) their living arrangements, the relative normality of the placement and the purpose behind it, all of which the Court of Appeal had considered relevant in determining whether there is a deprivation of liberty, have been held by the majority of Supreme Court Justices not to be relevant to that question.
P and Q are sisters aged 18 and 17 respectively when their cases came to court. Both have learning disabilities. P was placed with a foster mother and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. Q was placed in a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication.
P (in the Cheshire West case) was a 38 year old man with cerebral palsy and Down’s syndrome. He required 24 hour care and lived in in a staffed bungalow with other residents. His accommodation was arranged by the local authority. He had one to one support to enable him to leave the house frequently for activities and visits. Intervention was sometimes required when he exhibited challenging behaviour.
In both cases the Court of Appeal held that the service users concerned were not deprived of their liberty in their living arrangements. The Official Solicitor appealed on the service users' behalf. At issue was the test for identifying a deprivation of liberty in a care setting.
This is a highly significant issue for hospital, residential care and supported living providers, who are required to apply the test in practice, and for the commissioners of such packages of care.
The confusion created by the Court of Appeal may now largely have been resolved, but this judgment will have significant practical and administrative ramifications for health and social care organisations.
With the clarification of the test will come a need to re-evaluate the circumstances of a large number of service users. Many in hospital and care home settings may now require applications under the Deprivation of Liberty Safeguards (DOLS). In supported living, applications to the Court of Protection may be required to authorise placements as being in best interests. The resource implications are likely to be considerable for providers, commissioners, Supervisory Bodies and the courts.
Whilst this clarification is welcome, this has been a difficult month for the DOLS.
On 13 March a House of Lords committee found the DOLS to be fundamentally flawed and recommended they be replaced with new legislation. In this judgment Lady Hale notes their "appearance of bewildering complexity".
She comments that what is required is a periodic independent review of such care arrangements, which need not be as elaborate as what the DOLS and the Court of Protection currently provide. She suggests that the regime could be simplified and extended to the placements outside hospitals and care homes. These are practical and sensible conclusions.
It seems only a matter of time before the DOLS regime is revisited by Parliament.